Scally v Rhatigan

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 21 December 2010
• Neutral Citation: [2010] IEHC 475
• Date: 21 December 2010
• Court: High Court
• Docket Number: [2009 No. 3286 P]

[2010] IEHC 475

THE HIGH COURT

[No. 3286 P/2009]

Scally v Rhatigan

IN THE MATTER OF THE ESTATE OF BRIAN RHATIGAN DECEASED, LATE OF "CHANTILLY", BALLYBRIDE ROAD, RATHMICHAEL IN THE COUNTY OF DUBLIN

BETWEEN

SHARON SCALLY

PLAINTIFF

AND

ODILLA RHATIGAN

DEFENDANT

CIVIL LIABILITY ACT 1961 S9

SUCCESSION ACT 1965 S78

SUCCESSION ACT 1965 S111

SUCCESSION ACT 1965 S77(1)

O'DONNELL v O'DONNELL UNREP KELLY 24.3.1999 2003/43/10305

FLANNERY v FLANNERY UNREP FEENEY 12.2.2009 2009/21/5205

BANKS v GOODFELLOW 1870 LR 5 QB 549

GLYNN, DECEASED, IN RE 1990 2 IR 326

KEY, DECEASED, IN RE 2010 1 WLR 2020

WILLIAMS MORTIMER & SUNNUCKS EXECUTORS ADMINISTRATORS & PROBATE 18ED PARA 13-19

PROBATE

Will

Validity - Testamentary capacity - Whether deceased had testamentary capacity at time of execution of will - Onus of proof - Medical evidence - Complexity of will - Intention of testator - Banks v Goodfellow [1870] LR 5 QB 549 applied; In re Key, dcd [2010] 1 WLR 2020 considered - Succession Act 1965 (No 27), ss 77, 78 and 111- Will proved in solemn form (2009/3286P - Laffoy J - 21/12/2010) [2010] IEHC 475

Scally v Rhatigan

Facts The plaintiff, who was the sole surviving executrix in the will of the deceased herein applied by to have that will, dated 19 May 2005, proved in solemn form of law as the last will and testament of the deceased. The defendant, who was the widow of the deceased delivered a defence and counterclaim. By order of the Master made on 5 May 2010 by consent, the issues to be tried were listed. At the hearing it was agreed by the parties that only the first three issues would be determined by the Court at this juncture, namely: 1. whether the will was executed in accordance with the formalities required by s. 78 of the Succession Act 1965; 2. whether the deceased knew and approved of the contents of the will; and 3. whether, at the time of executing the will, the deceased was of sound disposing mind and had capacity to make a valid will. At the hearing it was acknowledged on behalf of the defendant that the will was executed in accordance with s. 78 of the 1965 Act. The only evidence given to the court in relation to the deceased's business and his assets at the date of his death was the evidence given by the plaintiff, who acted for the deceased in relation to property investments, conveyancing matters and litigation from 1986 onwards. However, the net value of the deceased's estate was unknown and the Revenue Commissioners were investigating his affairs. The will of the deceased ran to 23 pages and bequeathed property to the defendant, the deceased's partner, his children, grandchildren and his siblings. The will also contained complex provisions in respect of trusts. Evidence was given by family members, and by the plaintiff, a witness to the will and the deceased's secretary regarding the circumstances in which the will was made and medical evidence was given in relation to the deceased's physical and mental condition in 2004 and 2005 due to motor neurone disease. Evidence was also given of the appropriate practice on the part of a solicitor in addressing the capacity of a person to make a will.

Held by Laffoy J. in proving the will: That on the basis of sight of the original will and the evidence of two attesting witnesses, the will was executed in accordance with the rules for a will to be valid as set out in s. 78 of the Act of 1965. The question of whether the deceased was of sound disposing mind when his will was executed was a question of fact, which was to be determined having regard to all of the evidence and by applying the evidential standard of the balance of probabilities. The plaintiff's evidence was accepted as an accurate account of how the deceased's will came into being. The medical evidence in relation to the deceased's condition offered on behalf of the plaintiff was accepted by the court. In applying the test set out in Banks v. Goodfellow [1870] LR 5 QB 549, the first question the court had to consider was whether the deceased understood the nature of the act of making a will and its effect. On the evidence before the court the deceased did understand that, in executing the will, he was executing a document that would take effect on his death and would determine the manner in which assets which he owned which were in his name would be distributed on his death. The second question to be considered in accordance with the aforementioned test was whether the deceased understood the extent of the property of which he was disposing. The court was satisfied that he did so understand. The third question under that test was whether the deceased comprehended and appreciated the clams to which he ought to give effect. It was clear that the deceased, when he was making his will, fully appreciated the legal entitlements which the defendant, his partner and each of his children had against him and his estate and his corresponding duty to them. The deceased endeavoured to fulfil his legal and moral duties. Despite the deceased's severe physical disability and cognitive limitations, he did have testamentary capacity at the date of making his will.

Reporter: L.O'S.

1. The proceedings

2 2 1.1 The aspect of these proceedings with which the Court is concerned in this judgment is an application by the plaintiff to have a testamentary document dated the 19 ^th May, 2005, (which, for the sake of brevity, I will refer to as "the Will") proved in solemn form of law as the last will and testament of Brian Rhatigan ("the deceased"). The deceased died on the 7 ^th February, 2006. The plaintiff is the sole surviving executrix named in the Will and she brings these proceedings in that capacity. The defendant is the widow of the deceased. On the 20 ^th November, 2008, a caveat was entered on behalf of the defendant and two of the children of the deceased, although an issue arose subsequently as to whether the children had given instructions that the caveat be lodged on their behalf. In any event, the caveat was warned on the 27 ^th February, 2009 and an appearance was entered to the warning on behalf of the defendant alone on the 10 ^th March, 2009. These proceedings were initiated by plenary summons which issued on the 8 ^th April, 2009.

3 3 1.2 On the 15 ^th September, 2009, the defendant delivered a defence and counterclaim to the plaintiff's statement of claim which had been delivered on the 3 ^rd June, 2009. The counterclaim raises issues which go beyond the issues which would usually be raised in a probate action, for instance, whether the deceased was, at the date of his death, constituted a trustee as to half of his estate for the benefit of the defendant by reason of matters pleaded in the counterclaim. The plaintiff delivered a reply and defence to counterclaim on the 3 ^rd March, 2010. That, in turn, raised additional issues, for instance, whether the defendant's claim that the deceased was a trustee for her benefit of half of his estate is statute barred by operation of s. 9 of the Civil Liability Act 1961. Issues are also raised on the pleadings as to the extent of the estate of the deceased and as to the appropriateness of the plaintiff acting as legal personal representative of the deceased.

4 4 1.3 By order of the Master made on the 5 ^th May, 2010 by consent, the issues to be tried were listed. At the hearing it was agreed by the parties that only the first three issues would be determined by the Court at this juncture. They are:

1 whether the Will was executed in accordance with the formalities required by s. 78 of the Succession Act 1965 ("the Act of 1965");

2 whether the deceased knew and approved of the contents of the Will; and

3 whether, at the time of executing the Will, the deceased was of sound disposing mind and had capacity to make a valid will.

5 5 1.4 At the hearing it was acknowledged on behalf of the defendant that the Will was executed in accordance with s. 78 of the Act of 1965. On the basis of sight of the original will and the evidence of the two attesting witnesses, Sheila O'Neill, a solicitor in Amorys, the firm which acted for the deceased when he made the Will, and Elaine Cahill, a trainee solicitor in that firm at that time, I am satisfied that the Will was executed in accordance with the rules for a will to be valid as set out in s. 78 of the Act of 1975.

6 6 1.5 Accordingly, what remains to be decided is whether the deceased had testamentary capacity on the 19 ^th May, 2005.

2. The deceased

2 2 2.1 The deceased was born in January, 1946 and had just turned 60 years of age at the date of his death. There were three children of the marriage of the deceased and the defendant: Odilla Gilson; David Rhatigan; and Brian Rhatigan Junior, who predeceased the deceased having died in April, 2003 at twenty years of age. The deceased was also survived by grandchildren. Details of his grandchildren were not given in evidence, although I note from the agreed book of correspondence given to the Court that there are four grandchildren, the children of Odilla Gilson.

3 3 2.2 The deceased and the defendant had matrimonial difficulties during the late 1990s and they were de facto separated from around 1998. Following the separation, each was represented in relation to the family law matters by a solicitor specialising in family law. I make that observation for the purpose of emphasising that the plaintiff did not act for the deceased in relation to family law matters. As I understand it from the evidence, and it is necessary to emphasise that the defendant did not give evidence at the hearing, there was a consensual arrangement between the deceased and the defendant in relation to financial matters during the life of the deceased, although the arrangement was not formalised as a separation agreement in writing.

4 4 2.3...